People v. Haymaker

• Citation: 716 P.2d 110
• Decision Date: 17 March 1986
• Docket Number: No. 84SA497,84SA497
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward T. HAYMAKER, Defendant-Appellant.
• Court: Supreme Court of Colorado

Page 110

716 P.2d 110

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Edward T. HAYMAKER, Defendant-Appellant.

No. 84SA497.

Supreme Court of Colorado En Banc.

March 17, 1986.

As Modified on Denial of Rehearings April 21, 1986.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Peter J. Stapp, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Public Defender, John P. Leopold, Special Deputy State Public Defender, Littleton, for defendant-appellant.

DUBOFSKY, Justice.

The defendant, Edward T. Haymaker, appeals his conviction and the sentence imposed by the District Court for Mesa County for first degree sexual assault, and a crime of violence. We determine that the district court did not abuse its discretion in denying a mistrial when a witness referred to certain evidence outside the scope of a stipulation or in admitting evidence of the victim's state of mind after the commission of the crime. We also determine that the defendant's sentence for sexual assault was proper because the provisions of sections 16-11-309(1) and 18-1-105(9)(a)(I), 8 C.R.S. (1985 Supp.), that mandate a sentence in the aggravated range may constitutionally be applied to a defendant convicted of first degree sexual assault committed with a deadly weapon. ¹ Therefore, we affirm the judgment of the district court.

At trial the victim testified that she awoke about 2 a.m. on August 5, 1983, when she felt someone touch her in the pelvic area. Thinking that her two-year-old daughter was standing next to the bed, she stretched out her arm, and a man grabbed it. During the course of the next two and a half hours, the man sexually assaulted her several times at knifepoint and threatened to kill her and her daughter. After the assailant left the victim's apartment, she heard him walk along the balcony past her window and land with a thud on the other side of the divider which separated her balcony from that of the neighboring apartment. She then telephoned her parents, who came to her apartment, and her father immediately called the police. The victim also testified that when she was moving out of her apartment on August 7, she saw a man, standing on the balcony of the neighboring apartment, whom she identified as her assailant. She had met him the previous Tuesday evening in the apartment complex laundry room and knew that he lived next door. Police officers arrested the man she identified, the defendant, at work the next day.

The People presented testimony at trial that pubic hair discovered in the victim's bed matched the defendant's pubic hair, that a knife and watch taken from the defendant upon his arrest essentially matched the descriptions of the assailant's knife and watch given by the victim, and that entry to the victim's apartment was gained by loosening the screen in her daughter's bedroom. The victim's mother testified that after the assault the victim was afraid to be alone and for two months she slept with her mother, jumping and crying out if someone touched her while she was asleep. The defendant, testifying on his own behalf, claimed that he knocked on the door to the victim's apartment early in the morning on August 5, that she invited him in, and that after a period of time spent talking, they engaged in consensual sexual intercourse.

The jury found the defendant guilty of first degree sexual assault, first degree burglary, felony menacing, and crime of violence. The district court determined that the statutory scheme required it to impose a sentence for first degree sexual assault in the aggravated range for a class 2 felony of more than 12 but not more than 24 years. Accordingly, the court sentenced the defendant to fourteen years for first degree sexual assault, ten years for first degree burglary, and two years for felony menacing, the sentences to run concurrently. On appeal the defendant challenges two of the district court rulings as an abuse of discretion. He also challenges the constitutionality of the statutes under which the sentence for first degree sexual assault was imposed.

I.

A.

Prior to trial, the defense and the prosecution stipulated that an agent of the Colorado Bureau of Investigation analyzed certain fingerprints found at the crime scene and determined that the prints were not those of the defendant. The stipulation permitted this information to be introduced into evidence by a police officer who received it from the C.B.I. agent. During cross-examination, defense counsel asked the police officer whether the officer had obtained the fingerprints of the victim. When the officer responded that he had not, defense counsel inquired whether the stipulation precluded further fingerprint investigation. The police officer responded that it did not.

On redirect examination, the prosecutor asked the police officer if, to his knowledge, the People had offered to take other fingerprints at the request of the defense. An objection to the question was overruled, and the officer answered that the People had offered to do so. At this point, one of the two defense attorneys indicated a desire to testify concerning the stipulation, asked the court for leave to withdraw from representing the defendant, and moved for a mistrial. The court denied both motions, stating that co-counsel could question the defense attorney, as a witness, about the stipulation. The defendant here renews his argument that the district court erred in denying the motions for a mistrial and for leave to withdraw.

A mistrial is a drastic remedy for improper prejudicial conduct, and a trial court's ruling on a motion for a mistrial will not be disturbed on appeal unless the ruling amounted to a gross abuse of discretion. People v. Hodges, 624 P.2d 1308 (Colo.1981); People v. Sexton, 192 Colo. 81, 555 P.2d 1151 (1976); People v. Lowe, 184 Colo. 182, 519 P.2d 344 (1974). There is insufficient evidence in this case of either improper conduct or prejudice to warrant reversal of the district court's ruling.

The district court observed that defense counsel had "opened the door" on cross-examination to further inquiry concerning the circumstances of the stipulation. We agree. There is nothing in the stipulation that should permit the defense to create the impression that the fingerprint investigation was less than thorough while denying the prosecution the opportunity to dispel that impression. Cf. People v. Tenorio, 197 Colo. 137, 590 P.2d 952 (1979). Thus, there was nothing so inherently improper in the redirect testimony to require a mistrial.

The defendant argues that by denying his counsel's motion to withdraw, the district court placed counsel in the untenable position of either leaving the police officer's redirect testimony unrebutted or testifying on behalf of his own client. However, even if the court's ruling denied defense counsel the opportunity to rebut the police officer's testimony, there is no indication that the court's ruling prejudiced the defendant. The district court concluded that the entire fingerprinting issue was a minor collateral matter, and its conclusion is supported by the record. ²

B.

The defendant asserts that the district court erred in admitting, over objection, testimony by the victim and her mother that she moved out of her apartment and into her parents' home after the crime occurred and that she was fearful and distraught for several months after the assault. The district court admitted the testimony on the ground that it was evidence of the victim's state of mind within the meaning of CRE 803(3). ³ The preliminary question is whether these statements were inadmissible under the hearsay rule. The victim's testimony about her own state of mind is not hearsay. Furthermore, the statements of the victim's mother properly were admitted under the state of mind exception to the hearsay rule in CRE 803(3).

The critical question is not whether the evidence was hearsay but rather whether evidence of the victim's conduct after the crime was relevant to an issue at trial. Determinations of relevancy are in the first instance reserved to the discretion of the trial court, and the trial court's decision will not be reversed unless that discretion was abused. People v. Lowe, 660 P.2d 1261 (Colo.1983).

There are sound reasons for viewing with some skepticism the type of testimony in question here. Evidence that the victim was generally nervous and afraid after an alleged crime is not necessarily relevant to the question whether the crime was committed by the defendant. Even where the victim's state of mind is relevant for other purposes, such as whether a crime occurred, there is danger that the prejudicial character of the evidence may overshadow its probative value. CRE 403. In this case, however, the admission of the state-of-mind evidence did not constitute an abuse of the district court's discretion. As the court determined, the evidence substantiated the credibility of the victim on the important issue of whether she consented to a sexual relationship with the defendant. Cf. State v. Thomas, 130 Ariz. 432, 636 P.2d 1214 (1981) (evidence of victim's personality changes after incident relevant and admissible in prosecution for sexual abuse and sexual conduct with a minor). Our review of the record persuades us that the state-of-mind evidence was not so inflammatory or repetitive that the defendant was unduly prejudiced by its admission. We therefore conclude that the district court did not commit reversible error in admitting the evidence of the victim's mental and emotional state after the crime. ⁴

II.

A.

The defendant challenges his sentence on a number of constitutional grounds. First, he argues that the sentencing provisions of section 18-1-105(9)(a)(I), 8 C.R.S. (1985 Supp.) work a denial of equal protection of the laws when applied to a defendant convicted of first degree sexual assault as a class 2 felony under section 18-3-402(2)(...